NC0000311_Comments_20221228

SOUTHERN
ENVIRONMENTAL
NVRONMENTAL
LAW
CENTER
Via Email
Richard Rogers
N.C. Dept. of Environmental Quality
Division of Water Resources
Water Quality Permitting Section
1617 Mail Service Center
Raleigh, NC 27699-1617
[e-mail]
48 Patton Avenue, Suite 304 Telephone [phone]
Asheville, NC 28801 Facsimile 828-258-2024
December 20, 2022
Re: Application of the trout waters temperature standard in draft NPDES Permit
Nos. NC0089559 and NC0000311.
Dear Mr. Rogers:
Please accept the following comments submitted on behalf of MountainTrue, North
Carolina Trout Unlimited State Council, North Carolina Wildlife Federation, and the Southern
Environmental Law Center related to the North Carolina Department of Environmental Quality's
("DEQ") application of the trout waters temperature standard in two recently noticed draft
National Pollutant Discharge Elimination System ("NPDES") permits: Draft Permit Nos.
NC0089559 (Ridge Haven Wastewater Treatment Plant) and NC0000311 (M-B Industries
Wastewater Treatment Plant). Both permits would authorize discharges into designated trout
waters.' Proper application of the trout waters temperature standard is critical to protecting trout
populations in North Carolina.
The M-B Industries draft permit correctly applies the temperature standard to discharges
of wastewater effluent and non -contact cooling water.2 That permit prohibits discharges that
cause "an increase in the temperature of the receiving stream of more than 0.5°C" and recognizes
that the ambient stream temperature shall "in no case" exceed 20°C. This standard is absent from
the Ridge Haven draft permit, however. The cover letter accompanying the draft permit notes
that the Ridge Haven draft permit has been amended relative to the existing permit to require
monitoring to assess compliance with the trout waters temperature standard.3 This is a step in the
right direction, but the permit must also contain standard -enforcing language.4 We ask that DEQ
1 Ridge Haven WWTP discharges into Toxaway Creek, a Class C Trout water in the Savannah River Basin. M-B
Industries WWTP discharges into the West Fork French Broad River, a Class B Trout water in the French Broad
River Basin.
2 Draft NPDES Permit No. NC0000311 (Nov. 22, 2022).
3 Letter from Sydney Carpenter, Environmental Specialist, NC Dep't of Envt'l Qual., to Wallace Anderson, Ridge
Haven, Inc. (Nov. 22, 2022), at 2.
4 Draft NPDES Permit No. NC0089559 (Nov. 22, 2022).
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington, DC

add a condition to the Ridge Haven permit that enforces the trout waters temperature standard
similar to the condition included in the M-B Industries draft permit.
Application of the trout waters temperature standard is especially important because DEQ
has used the wrong water quality standard for temperature —the general mountain waters
standard of 29°C instead of the trout waters standard of 20°C—when preparing past lists of
impaired waters under Section 303(d) of the Clean Water Act.5 The most recent 303(d) list does
not disclose which standard-29°C or 20°C—DEQ applied when assessing impairment of the
receiving streams at issue here. We ask that DEQ correct these deficiencies by adding limits to
sufficient to ensure compliance with the trout waters temperature standard of 20°C.
I. Trout require cold, clean water to survive.
Keeping water temperature in designated trout waters below certain thresholds is
critically important because North Carolina's three species of trout —brook trout, brown trout,
and rainbow trout —require cold, clean, oxygen -rich water to survive and thrive. Water
temperature for these trout generally needs to be kept below 20°C (68°F).6 Unfortunately, past
and ongoing land management practices threaten trout habitats, including by increasing stream
temperatures. As we explained in our comments on North Carolina's draft 2022 Clean Water Act
Section 303(d) list, numerous trout streams routinely exceed safe water temperatures for trout.?
Climate change is exacerbating this problem. By 2060, western North Carolina is
predicted to see 10-20 more days each year with air temperatures above 35°C (95°F), increasing
the potential for water temperatures to rise above 21.1°C (70°F)—levels that can be lethal to
trout.8 This combination of past habitat loss, ongoing poor land management practices, and
climate change poses an existential threat to many western North Carolina trout populations.
Declines in trout populations —driven by increasing stream temperatures or otherwise —
will hurt local economies. The total economic benefit of trout fishing in North Carolina is
estimated at $383.3 million annually, supporting nearly 3,600 jobs.9 If trout habitats are further
reduced, these economic benefits will be at risk. Overall, stream temperatures in North Carolina
are increasing, and this trajectory is predicted to continue under a changing climate. To protect
5 See generally North Carolina 2022 Integrated Report at 1035 available at
https://edocs.deq nc.gov/WaterResources/DocView.aspx?dbid=0&id=2361713&cr=1.
6 Trout Species of North Carolina, Fly Fishing NC (accessed Dec. 16, 2022), https://www flyfishingnc.com/trout-
species-of-north-carolina.
7 S. Envtl. L. Ctr., Comments on North Carolina's Draft 2022 § 303(d) List (Feb. 28, 2022), Attachment 1.
8 Emma Johnson, Climate Change Challenges Trout Industry in North Carolina, Carolina Public Press (Feb. 17,
2021), https://carolinapublicpress.org/42527/climate-change-challenges-trout-industry-in-north-carolina/. See also
Kunkel, K.E., et al., North Carolina Climate Science Report (2020), available at
https://ncics.org/wpcontent/uploads/2020/ 10/NC_Climate_Science_Report_FullReport_Final_revised_September20
20.pdf.
9 N.C. Wildlife Res. Comm'n, Mountain Trout Fishing: Economic Impacts on and Contributions to North Carolina's
Economy (2015), available at https://www ncwildlife.org/Portals/0/Fishing/documents/Economic-Impacts-Trout-
Fishing.pdf.
2

trout populations and the businesses that rely on them, North Carolina must take proactive steps
to ensure trout waters remain sufficiently cold.
II. North Carolina promulgated a temperature water quality standard to protect
trout.
Recognizing that trout require cold water, North Carolina exercised its authority under
the Clean Water Act to develop a temperature water quality standard designed to keep trout
streams cold. The Clean Water Act requires states to designate "uses" of waterbodies and
promulgate standards to protect those uses. See 33 U.S.C. § 1313; 40 C.F.R. § 131.10; N.C. Gen.
Stat. § 143-214.1. All waterbodies in North Carolina are subject to a temperature standard to
protect their associated designated use. 15A N.C. Admin. Code 2B.0211(18). Some North
Carolina waterbodies have been assigned a "trout waters" use. See 15A N.C. Admin. Code
2B.0301(b)(3) (explaining trout waters classification); 40 C.F.R. § 131.10(c) ("States may adopt
sub -categories of a use and set the appropriate criteria to reflect varying needs of such sub-
categories of uses, for instance, to differentiate between cold water and warm water fisheries.").
The temperature standard —for both trout waters and non -trout waters —provides that water
temperature is:
not to exceed 2.8 degrees C (5.04 degrees F) above the natural water temperature,
and in no case to exceed 29 degrees C (84.2 degrees F) for mountain and upper
piedmont waters and 32 degrees C (89.6 degrees F) for lower piedmont and coastal
plain waters; the temperature for trout waters shall not be increased by more than
.5 degrees C (0.9 degrees F) due to the discharge of heated liquids, but in no case
to exceed 20 degrees C (68 degrees F).
15A N.C. Admin. Code 02B .0211(18).
The standard has two parts —a delta limit and an absolute limit. In non -trout waters, the
delta limit prohibits an increase attributable to a discharger of more than 2.8°C above the natural
water temperature. The absolute limit provides that temperature shall "in no case" exceed 29°C
in mountain and upper piedmont waters and 32°C in lower piedmont and coastal plain waters
regardless of the presence of permitted dischargers.
The trout waters standard follows this same structure: Stream temperature may not be
increased "by more than .5 degrees C... due to the discharge of heated liquids" but "in no case"
shall stream temperature exceed 20°C. This makes sense because keeping trout waters below
20°C—regardless of the presence of permitted dischargers —is critical to sustaining healthy trout
populations.
North Carolina's temperature standard, including for trout waters, is implemented in part
through NPDES permits that regulate point source discharges by setting limits and monitoring
requirements for a variety of water quality characteristics. 33 U.S.C. § 1342(a). State agencies
with delegated authority to administer the NPDES program, such as DEQ, are responsible for
ensuring NPDES permits identify and apply the correct water quality limits for the waterbody
into which the permittee will be discharging effluent.
3

III. DEQ must amend the Ridge Haven draft NPDES permit to include a trout
waters temperature standard.
To comply with the Clean Water Act and state water quality standards, DEQ must ensure
the NPDES permit for Ridge Haven WWTP enforces temperature limits necessary to protect
trout waters. The draft permit out for comment currently contains no language requiring the
discharger to achieve those limits, despite newly including monitoring requirements for
temperature.10 We applaud DEQ for taking notice of the importance of monitoring water
temperature for the protection of trout waters. But it must also enforce the parameters it monitors
as permit conditions.
Further, DEQ must require permit applicants to submit effluent parameters for their
expected discharges. Ridge Haven's application lists maximum and average daily discharge
figures for several parameters, but it provides no figures for temperature.11 DEQ should require
Ridge Haven WWTP to report expected effluent temperatures. Nevertheless, based on the
information before DEQ, inclusion of a temperature standard is justified to ensure the permittee
does not violate the trout waters temperature standard.
To be clear, DEQ has no authority to issue NPDES permits that do not ensure compliance
with water quality standards which includes the trout waters temperature standard. See 33 U.S.C.
§ 1311(b)(1)(C) (requiring NPDES permits to include limitations "necessary to meet water
quality standards"); 40 C.F.R. § 122.44(d)(1).
As noted above, incorporating the trout waters temperature standard into permits is also
important because DEQ has failed to correctly apply this standard when preparing its Clean
Water Act Section 303(d) list. Section 303(d) requires states to identify waterbodies that are not
meeting water quality standards, investigate the reasons for noncompliance, and develop a plan
to remediate those problems. For several years, DEQ has wrongly applied the water quality
temperature standard for mountain waters (29°C) to designated trout waters protected by the
20°C standard.12 The 2022 303(d) Integrated Report does not disclose which standard DEQ
applied to the receiving water at issue here. But the combination of these two errors —failure to
include temperature standards in NPDES permits and failure to assess compliance with the
correct temperature standard in the Section 303(d) context —generally risks jeopardizing trout
populations.
In summary, before finalizing the Ridge Haven permit, DEQ must add language
implementing the water quality temperature standard for trout waters. The most straightforward
and thorough approach is to include language DEQ has already properly applied to other trout
water discharge permits:
10 Draft Permit NC0089559, at 3.
11 See Application No. NC0089559 for NPDES Permit to Discharge Wastewater, Ridge Haven WWTP (rec'd Apr.
9, 2021), at 11, tbl. A, Effluent Parameters for All POTWS (leaving "Temperature" fields blank except for the word
"Monitor").
12 See supra note 5.
4

"The instream temperature shall not be increased by more than 0.5 degrees C (0.9
degrees F) due to the discharge of heated liquids, but in no case to exceed 20
degrees C (68 degrees F). If the stream temperature exceeds 20 degrees C due to
natural background conditions, the effluent cannot cause any increase in instream
water temperature."
This expression of the temperature standard, found in the most recent draft NPDES
permit for the Buffalo Meadows WWTP, NPDES Permit No. NC0030325 (and others), correctly
requires permittees to cause no further increase in temperature when stream temperature already
exceeds trout water standards.
IV. Conclusion
North Carolina has some of the best and most at -risk trout habitat in the eastern United
States. Ensuring viable trout populations persist in the future requires keeping trout streams clean
and cold. To that end, DEQ must forthrightly apply the trout waters temperature standard in
NPDES Permit No. NC0089559.
Please notify Henry Gargan at hgargan(a,selcnc.org or 828-258-2023 when DEQ issues
final version of the Ridge Haven NPDES permit. We remain available as always to discuss our
concerns.
Sincerely,
Henry Gargan
Associate Attorney
Southern Environmental Law Center
[e-mail]
Patrick Hunter
Managing Attorney
Southern Environmental Law Center
cc: Sydney Carter ([e-mail])
Sergei Chernikov ([e-mail])
5

Attachment 1
Comments on NC 2022 draft
303(d) list

SOUTHERN
ENV RONMENTAL
CENTER
48 Patton Avenue, Suite 304 Telephone [phone]
Asheville, NC 28801 Facsimile 828-258-2024
February 28, 2022
Via First Class U.S. Mail and Electronic Mail
Cam McNutt
N.C. Department of Environmental Quality
Division of Water Resources
1617 Mail Service Center
Raleigh, NC 27699-1167
[e-mail]
Re: Comments on North Carolina's Draft 2022 $303(d) List
Dear Mr. McNutt:
On behalf of North Carolina Wildlife Federation, North Carolina Trout Unlimited, and
MountainTrue we are submitting comments on North Carolina's draft 2022 § 303(d) list of
impaired waters. The proper identification of impaired waters is essential to improving the
quality and preserving the best use of the State's waters. This is critical for people who rely on
these waters for their economic livelihoods, for spiritual renewal, and for recreation. Identifying
impaired waters is also critical for species that depend on clean water, like Southern Appalachian
brook trout. For too long, the Department of Environmental Quality ("DEQ") has ignored
exceedances of the temperature standard for trout streams when preparing its 303(d) list. As a
result, the causes of these exceedances are never assessed and remediated through preparation of
a Total Maximum Daily Load ("TMDL")—all to the detriment of anglers, fishing guides, and,
most importantly, trout and other species that rely on cold, clean water. Climate change will only
exacerbate this problem. It is past time for DEQ to begin listing waters on its 303(d) list that are
exceeding the temperature standard for trout waters, consistent with DEQ's listing
methodology.1
DEQ should also explain how it applies narrative water quality standards when preparing
its 303(d) list and fix longstanding problems with its listing and delisting methodology and water
quality monitoring program.
1 See N.C. Dep't of Envtl. Quality, 2022 303(d) Listing and Delisting Methodology (May 13, 2021). Using this
methodology, DEQ will list a stream as impaired if (1) sample size is greater than nine and (2) there is a greater than
10% exceedance rate with at least 90% statistical confidence, or there is a greater than 10% exceedance rate with
less than 90% confidence and there are more than three excursions with 90% confidence in newer data that have not
been previously assessed. Id. at 4. For purposes of the 2022 303(d) list, "newer data" consists of data collected in
2019 and 2020.
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington, DC

I. The 303(d) listing process is critical to protecting the integrity of North
Carolina's waters.
Congress passed the Clean Water Act ("CWA") in 1972 to "to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To that
end, Congress charged states with identifying "designated uses" for each jurisdictional
waterbody within its boundaries. 33 U.S.C. § 1313(d); 40 C.F.R. § 131.10. States then set
"criteria necessary to protect the uses" as water quality standards. 40 C.F.R. § 130.3.2 Water
quality standards "should, wherever attainable, provide water quality for the protection and
propagation of fish, shellfish and wildlife and for recreation in and on the water and take into
consideration their use and value for public water supplies." Id. "Such standards serve the dual
purposes of establishing the water quality goals for a specific water body and serving as the
regulatory basis for establishment of water quality -based treatment controls and strategies
beyond the technology -based level of treatment required by sections 301(b) and 306 of the
[CWA]." Id. States "are required to set water quality standards for all waters within their
boundaries regardless of the sources of the pollution entering the waters." Pronsolino v. Nastri,
291 F.3d 1123, 1127 (9th Cir. 2002). In other words, water quality standards are set without
regard to existing or future sources of pollution.
Water quality standards must be approved by the Environmental Protection Agency
("EPA") and are reviewed at least every three years. See 33 U.S.C. § 1313(a)—(c). If a new or
revised state -promulgated water quality standard is insufficient to meet the purposes of the
CWA, EPA must promulgate a sufficient water quality standard in its stead. 33 U.S.C. §
1313(c)(3).
Every two years, states must identify "water quality limited segments" of jurisdictional
waters within their borders and list them on their CWA § 303(d) list. See generally 33 U.S.C. §
1313(d). A "water quality limited segment" is any "segment where it is known that water quality
does not meet applicable water quality standards, and/or is not expected to meet applicable water
quality standards." 40 C.F.R. § 130.2(j). More specifically, states must identify water quality
limited segments for which:
(i) Technology -based effluent limitations required by [the CWA];
(ii) More stringent effluent limitations (including prohibitions) required by
either State or local authority preserved by section 510 of the Act, or
Federal authority (law, regulation, or treaty); and
(iii) Other pollution control requirements (e.g., best management practices)
required by local, State, or Federal authority are not stringent enough to
implement any water quality standards applicable to such waters.
40 C.F.R. § 130.7(b) (emphasis added). "Water quality standard," as used here, includes
"numeric criteria, narrative criteria, waterbody uses, and antidegradation requirements." Id. §
130.7(b)(3). States must also list water quality limited segments "for which controls on thermal
2 North Carolina implements this procedure by classifying waterbodies and assigning water quality standards for
each classification. See N.C. Gen. Stat. § 143-214.1; 15A N.C. Admin. Code 2B.0101, .0301.
2

discharges under section 301 [of the CWA] or State or local requirements are not stringent
enough to assure protection and propagation of a balanced indigenous population of shellfish,
fish and wildlife." Id. § 130.7(b)(2).
Once prepared, states submit draft 303(d) lists to EPA for approval. Id. § 130.7(d). EPA
may not approve a list that does not meet "the requirements of [40 C.F.R.] § 130.7(b)." Id. §
130.7(d)(2). If EPA disapproves a list, it must add wrongfully omitted water quality limited
segments back to the state's 303(d) list. Id.
States are obligated to "establish TMDLs for the water quality limited segments
identified" on that state's final 303(d) list. Id. C.F.R. § 130.7(c)(1). Total Maximum Daily Loads
are developed based on a waterbody's "loading capacity" which is the "greatest amount of
loading that a water can receive without violating water quality standards." 40 C.F.R. § 130.2(0.
A "load" is an "amount of matter or thermal energy that is introduced into a receiving water" and
"loading" is the act of introducing that matter or thermal energy into a receiving water. Id. §
130.2(e). "Loading may be either man -caused (pollutant loading) or natural (natural background
loading)." Id.
Once the TMDL determines the "loading capacity" of a waterbody, it allocates allowable
levels of pollutant discharges among nonpoint and point sources3 via load allocations4 and
wasteload allocations,5 respectively. The TMDL is the sum of the load allocations (including
background conditions) and wasteload allocations. It thus protects the overall health of
waterbodies by ensuring that point and nonpoint discharges are reduced to ensure compliance
with water quality standards.
TMDLs are also subject to EPA approval. Id. § 130.7(d). Once an approved TMDL is in
place, a waterbody no longer must be listed as "impaired" on the 303(d) list. In summary,
inclusion on the 303(d) list is the first step toward assessing water quality -limited segments and
determining load allocations and wasteload allocations through the TMDL process to ensure
water quality standards are not violated and designated uses of waterbodies are protected.
II. North Carolina's 303(d) list wrongfully excludes stream segments that violate
the temperature standard applicable to classified trout waters.
For decades, North Carolina has had a temperature water quality standard specific to
classified trout streams. Compliance with the standard is critical for keeping these streams cool
enough to sustain trout populations. Many trout waters are increasingly exceeding this
3 A "point source" is "any discernible, confined and discrete conveyance, including but not limited to any pipe,
ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation,
or vessel or other floating craft, from which pollutants are or may be discharged." 33 U.S.C. § 1362(14). Point
source discharges are regulated by National Pollutant Discharge Elimination System permits. Nonpoint source
pollution is pollution that enters waterbodies but not via "discernible, confined, discrete conveyances."
4 A "load allocation" is the "portion of a receiving water's loading capacity that is attributed either to one of its
existing or future nonpoint sources of pollution or to natural background sources." 40 C.F.R. § 130.2(g).
5 A "wasteload allocation" is the "portion of a receiving water's loading capacity that is allocated to one of its
existing or future point sources of pollution." 40 C.F.R. § 130.2(g).
3

temperature standard, threatening trout viability. Nevertheless, DEQ has consistently refused to
list these impaired streams on its 303(d) list by a combination of (1) interpreting the trout waters
temperature standard to only apply when thermal point sources discharge into the relevant stream
segment, but then (2) failing to investigate the presence of thermal point source dischargers. This
interpretation is contrary to the plain wording of the trout waters temperature standard, and
inconsistent with the requirements of the CWA and how DEQ applies the standard outside of the
303(d) context. Just last year, DEQ initiated an enforcement action in North Carolina Superior
Court alleging violations of the trout waters temperature standard even when no thermal point
source discharges were present. DEQ correctly applied the trout waters temperature standard in
that instance —the same standard it applies when preparing its 303(d) list.
A. North Carolina trout depend upon cool, clean water.
North Carolina is home to three types of trout: brook trout, rainbow trout, and brown
trout. Only brook trout are native to the state. Recent studies "suggest that the native brook trout
found in the southern Appalachians, including the mountains of western North Carolina,
represent a unique strain called Southern Appalachian brook trout."6 These trout "have endured
in North Carolina since the last ice age more than 10,000 years ago."7 "North Carolina mountain
streams once teemed with Southern Appalachian brook trout" but 19th- and 20th-century logging
practices decimated populations.8 "Extensive erosion and siltation from land disturbing activities
limited spawning success by smothering eggs and restricting their oxygen supply, and streams
that historically supported coldwater fishes were warmed due to lost canopy cover."9 Stocking of
rainbow, brown, and northern -strain brook trout also began around 1900.1° These introduced
species often outcompeted native brook trout, leading to further declines.1' Today, "the future of
the wild brook trout is of concern, and since 1900, the brook trout range is thought to have
declined by about 80 percent."12
Brook trout, brown trout, and rainbow trout require cold, clean, oxygen -rich water to
survive and thrive. Past and ongoing land management practices continue to threaten trout
habitats and these threats are exacerbated by climate change. By 2060, western North Carolina is
predicted to see 10-20 more days each year with air temperatures above 35° C (95° F), increasing
the chances that water temperatures will rise above 21.1° C (70° F)—levels that can be lethal to
6 N.C. Wildlife Res. Comm'n, Brook Trout: North Carolina Wildlife Profiles,
https://www.ncwildlife.org/Portals/0/Fishing/documents/BrookTrout.pdf, Attach. 1.
7 Doug Besler, Return of the Native?,
https://www.ncwildlife.org/portals/O/Learning/documents/WINC/Sample_07/sample_Apri107.pdf, Attach. 2.
8 Supra note 6.
9 Id.
Dr) Id.
11 Id.
12 Id.
4

trout.13 This combination of past habitat loss, ongoing poor land management practices, and
climate change poses an existential threat to many western North Carolina trout populations.
Declines in trout populations will also hurt local economies. The total economic benefit
of trout fishing in North Carolina is estimated at $383.3 million annually, supporting nearly
3,600 jobs.14 If trout habitats are further reduced, these economic benefits will be at risk.
B. North Carolina has specific temperature standards for trout waters.
Consistent with its obligations under the CWA, DEQ has classified some mountain
streams and lakes as "trout waters." See 15A N.C. Admin. Code 2B.0202(55) (defining "trout
waters"). To protect that condition, DEQ assigned trout waters a temperature standard: Their
temperature "shall not be increased by more than 0.5 degrees C (0.9 degrees F) due to the
discharge of heated liquids, but in no case to exceed 20 degrees C (68 degrees F)." 15A N.C.
Admin. Code 2B .0211(18); see also id. 2B.0301 (explaining that the "water quality standards
applicable to each classification assigned are those established in the rules of Section .0200 of
this Subchapter.").15 For purposes of compiling its 303(d) list, DEQ considers waters to be
impaired when state water quality criteria —including temperature —are exceeded in more than
10% of samples with greater than or equal to 90% statistical confidence.16 Waterbodies that meet
this numeric criterion must be listed;17 those that do not may still need to be listed if certain other
conditions are met.18 DEQ's application of these requirements in compiling its draft 2022 303(d)
report falls short for at least two reasons. First, it fails to apply the trout waters temperature
standard to multiple classified trout waters. Second, it refuses to list trout waters as impaired
even when the underlying data demonstrates impairment using DEQ's listing methodology.
13 Emma Johnson, Climate Change Challenges Trout Industry in North Carolina, Carolina Public Press (Feb. 17,
2021), https://carolinapublicpress.org/42527/climate-change-challenges-trout-industry-in-north-Carolina/ Attach. 3;
see also Kunkel, K.E., et al., 2020: North Carolina Climate Science Report, https://ncics.org/wp-
content/uploads/2020/10/NC_Climate_Science_Report_FullReport_Final_revised September2020.pdf, Attach. 4.
14 N.C. Wildlife Res. Comm'n, Mountain Trout Fishing: Economic Impacts on and Contributions to North
Carolina's Economy at iv (2015), https://www ncwildlife.org/Portals/0/Fishing/documents/Mountain%20Trout%
20Fishing%20Economic%20lmpacts%20on%20and%20Contributions%20to%20North%20Carolinas%20Economy.
pdf, Attach. 5.
15 In waters that are not classified trout waters, stream temperatures are "not to exceed 2.8 degrees C (5.04 degrees
F) above the natural water temperature, and in no case to exceed 29 degrees C (84.2 degrees F) for mountain and
upper piedmont waters and 32 degrees C (89.6 degrees F) for lower piedmont and coastal plain Waters." 15A N.C.
Admin. Code 2B .0211(18).
16 See supra note 1.
17 North Carolina carves out small exceptions for dissolved oxygen and pH in swamp waters if exceedances are due
to natural conditions. Id. at 5.
18 For example, pollutants with exceedance levels above 10% with less than 90% statistical confidence must still be
listed if at least three newer samples exceeded criteria with at least 90% statistical confidence. Id. at 3-4.
5

C. DEQ is applying the wrong temperature standard to numerous trout streams.
DEQ recognizes a 20° C limit for some trout waters in its draft 2022 303(d) list,19 but it
omits this criterion for at least forty other classified trout water segments and instead applies the
temperature standard for non -trout mountain and upper piedmont streams.20 This is the wrong
standard. Classified trout waters incorrectly assessed for compliance with the 29° C standard
applicable in mountain and upper piedmont streams generally -but not the correct 20° C trout
waters limit -include: Broad River (12498),21 Cedar Creek (12537), First Broad River (12758),
Catawba River (317), Wilson Creek (1034), French Broad River (10925), Davidson River
(11278), Avery Creek (11290), Mills River (11421), Pigeon River (10565), Allen Creek (10607),
Jonathans Creek (10684), Cataloochee Creek (10798), North Toe River (11971 and 11974),
South Toe River (12079), Cane River (12270), Valley River (3278), Cullasaja River (6497),
Nantahala River (7235 and 7236), Tuckaseegee River (8610 and 8611), Board Cove Branch
(8906), Wolf Creek (9098), Little Tennessee River (5606 and 5607), Flattop Branch (122),
Norris Branch (204), Buffalo Creek (233), Brush Creek (290), Crab Creek (299), Dan River
(6481),22 Horsepasture River (10512), Watauga River (13574 and 13605), Buckeye Creek
(12430), and Yadkin River (13904, 14027, and 14028).23 North Carolina must revise its 303(d)
list and sampling approach to assess compliance with the correct temperature standard -which,
in classified trout streams, is 20° C.
Application of the correct standard can decide whether a stream segment is listed as
impaired and therefore whether the sources of impairment will be addressed through a TMDL or
another process. For example, the draft 2022 303(d) list applies the temperature standard for
mountain and upper piedmont waters of 29° C to the First Broad River (WS-V, Tr; AU
ID:12758) and concludes that it complies relying on data from monitoring station A4800000.
That data shows that this segment was sampled 53 times during the relevant time period and
none of those samples exceeded 29° C.24 But twenty of those samples exceeded the trout waters
temperature standard of 20° C-a 38% exceedance rate at 99% confidence.25 Applying the
correct standard, this stream should be listed as impaired for temperature. DEQ must revise its
approach to apply the correct temperature standard to classified trout waters and include
waterbodies on its 303(d) list that are exceeding that standard consistent with its listing
methodology.
19 See, e.g., N.C. Dep't of Envtl. Qual., North Carolina 2022 Draft Integrated Report at 289,
https://edocs.deq nc.gov/WaterResources/DocView.aspx?dbid=0&id=2167748&cr=1 [hereafter "2022 Draft
Integrated Report"] (finding that Shooks Creek -a classified trout water- is "[m]eeting" the "20°C" water
temperature criteria based on legacy random ambient monitoring data).
20 See supra note 15.
21 The numbers provided in parentheses are the "AU ID" from the 2022 Draft Integrated Report.
22 Compounding its error, DEQ assesses compliance for this segment using the temperature standard applicable to
lower piedmont and coastal plain waters (32° C).
23 For hundreds of other classified trout waters, the 2022 Draft Integrated Report provides no indication about which
temperature standard DEQ applies.
24 See N.C. Dep't of Envtl. Qual., BasinSummAMSMCPALMP20162020and20192020_20210820.
25 Id.
6

D. North Carolina must list trout streams that are exceeding the temperature standard.
The First Broad River is not the only trout stream exceeding the trout waters temperature
standard but omitted from the draft 2022 303(d) list. The data DEQ used to prepare the draft
2022 303(d) list shows that multiple classified trout waters with ten or more sample results are
exceeding the trout waters temperature standard more than 10% of the time at greater than 90%
confidence level. DEQ must list these streams on its 2022 303(d) list. Monitoring locations
showing exceedances of the trout waters temperature standard include:
• First Broad River (A4800000)26 — 38% exceedance with 99% confidence level
• Cane River (E9850000) — 32% exceedance with 99% confidence level
• North Toe River (E8100000) — 28% exceedance with 99% confidence level
• Valley River (F4000000) — 25% exceedance with 97% confidence level
• French Broad River (E0150000) — 25% exceedance with 99% confidence level
• Pigeon River (E54950000) — 23% exceedance with 99% confidence level
• Davidson River (E0850000) — 21% exceedance with 98% confidence level
• South Toe River (E8200000) — 21% exceedance with 95% confidence level
• Horsepasture River (H6000000) — 20% exceedance with 93% confidence level
• North Toe River (E7000000) — 18% exceedance with 92% confidence level.
E. North Carolina's trout waters temperature standard is not dependent on the presence
of thermal dischargers.
Many of these streams have exceeded the trout waters temperature standard for multiple
303(d) listing cycles but have never been listed.27 Indeed, members of the public have been
raising this concern with DEQ since at least 2008.28 In response, DEQ has explained that it
"interprets [the trout waters temperature] standard to only be assessed with thermal discharges,"
i.e., thermal point source discharges subject to National Pollutant Discharge Elimination System
("NPDES") permits.29 This interpretation is contrary to the plain wording of the standard and the
requirements of the CWA, and it is inconsistent with how DEQ and other state agencies apply
the standard outside of the 303(d) context.
First, the plain wording of the temperature standard leaves no doubt that it applies
regardless of the presence of thermal discharges. In full, the standard states:
26 Data was collected at the monitoring stations provided in parentheses.
27 See N.C. Dep't of Envtl. Qual., 2020 303(d) list Integrated Report Data, BasinSummAMSCoalit1418and1718,
https://files nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2020/2020_DATA.zip.
28 N.C. Dep't of Env't and Nat. Res., Responsiveness Summary on the Draft 2008 303(d) (Category 5) List
Submitted April 1, 2008, at 13, https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/Draft%
26Revised2008ResponseSummaries.pdf, Attach. 6.
29 Id.; N.C. Dep't of Envtl. Qual., North Carolina 2020 Draft 303(d) List Public Comment Responsiveness Summary
Submitted June 3, 2021, at 51, https://deq nc.gov/media/20453/download (the trout waters temperature standard
"applies in its entirety to the evaluation of heated discharges").
7

Temperature: not to exceed 2.8 degrees C (5.04 degrees F) above the natural water
temperature, and in no case to exceed 29 degrees C (84.2 degrees F) for mountain
and upper piedmont waters and 32 degrees C (89.6 degrees F) for lower piedmont
and coastal plain waters; the temperature for trout waters shall not be increased by
more than 0.5 degrees C (0.9 degrees F) due to the discharge of heated liquids, but
in no case to exceed 20 degrees C (68 degrees F).
15A N.C. Admin. Code 2B .0211(18) (emphasis added). This standard embeds two prohibitions,
only the first of which is dependent on the presence of thermal dischargers. The first prohibition
is that thermal dischargers may not increase stream temperature by more than 0.5° C. For
example, heated discharges that cause stream temperatures to increase from 17 to 18° C are not
allowed. The second prohibition is that stream temperatures shall "in no case"—i.e., under no
circumstances —exceed 20° C. The second prohibition is not dependent on the presence of
thermal discharges but provides a temperature threshold that shall not be exceeded "in any case."
This is consistent with the grammatical structure of the standard, which consists of two
clauses. The first clause, related to the discharge of heated liquids, is separated from the second
by a comma and a "but." The comma indicates a break from the preceding language. And use of
"but" indicates that the second clause applies "notwithstanding" the first.30 In other words,
notwithstanding the limit on temperature increases caused by thermal discharges, the temperature
shall "in no case" exceed 20° C.
The first half of the general surface -water temperature standard lends even more
contextual support for enforcing the 20° C limit regardless of whether thermal point source
discharges are present. The full standard starts by setting a delta limit applicable to thermal
discharges: Temperature may not be increased by more than 2.8° C above baseline.31 It then
immediately pivots to a limit applicable to all waters: Temperatures are "in no case to exceed" 29
or 32° C, depending on location. The trout waters standard is functionally identical: It sets a delta
limit applicable to thermal discharges —temperature may not be increased by more than 0 5° C—
then immediately pivots to a limit applicable to all trout waters: temperatures are "in no case to
exceed 20 degrees C." DEQ does not suggest that the 29 and 32° C limits only apply to thermal
point source discharges. Given this context, DEQ cannot say that functionally identical language
in the 20° C limit commands a completely different result.
Understanding the 20° C limit to apply regardless of the presence of thermal point source
dischargers is also the most logical interpretation of the trout waters temperature standard. Trout
waters are subject to a more stringent temperature standard because high stream temperatures are
lethal to trout. It makes little sense to subject trout to high stream temperatures attributable to
30 But, Merriam Webster (l lth ed. 2003), https://www merriam-webster.com/dictionary/but.
31 Although this clause does not itself mention discharges of heated liquids, DEQ interprets this standard to prohibit
thermal dischargers from increasing water temperatures by more than 2.8° C. See, e.g., Dep't of Envtl. Quality,
NPDES Permit NC0000396 at 5 (Apr. 9, 2020), https://files nc.gov/ncdeq/Coal%20Ash/2020-actions/NC0000396-
Final-Permit.pdf. EPA also understands the 2.8° C limit to apply to thermal discharges. See EPA, NC Thermal
Water Quality Standards, https://www.epa.gov/sites/default/files/2014-12/documents/nc-thermal-wqs.pdf ("The rule
limits thermal discharges to 2.8 degrees C (5.04 degrees F) above the natural water temperature and includes further
restrictions based on geographic regions of the state").
8

nonpoint source discharges but prohibit the same increases in temperature attributable to point
source discharges. To the contrary, the standard applies regardless of whether the pollution is
caused by point or nonpoint sources.
Second, DEQ's interpretation cannot be squared with the requirements of the CWA. As
discussed above, the CWA requires states to identify designated uses for waterbodies and then
set criteria to protect those uses. See 40 C.F.R. § 130.3. "Water quality standards reflect a state's
designated uses for a water body and do not depend in any way upon the source of pollution."
Pronsolino, 291 F.3d at 1137. DEQ's interpretation turns this on its head by arguing that
application of North Carolina's trout waters temperature standard —and therefore protection of
designated uses —turns on whether pollution is coming from point sources. North Carolina could
not promulgate, and EPA could not approve, a water quality standard that restricts point source
temperature pollution but allows unlimited nonpoint source temperature pollution to enter a
stream because that standard would not protect the designated uses of the waterbody. North
Carolina state law reaches this same conclusion: "[W]ater quality standards relate to the
condition of waters as affected by the discharge of sewage, industrial wastes, or other wastes
including those from nonpoint sources and other sources of water pollution." 15A N.C. Admin.
Code 02B .0205 (emphasis added).
Neither can DEQ argue that its trout waters temperature standard applies to point and
nonpoint sources generally except in the 303(d) context where only point source discharges are
relevant. States must list waterbodies on 303(d) lists that are exceeding water quality standards
regardless of "whether a water body receives pollution from point sources only, nonpoint sources
only, or a combination of the two." Pronsolino, 291 F.3d at 1132-33. This is consistent with
EPA's "long-standing interpretation of section 303(d)" that the "listing requirement applies to
waters impaired by point and/or nonpoint sources."32 Specific to temperature, EPA has
previously advised that:
[W]aterbodies that do not meet an applicable State water quality criterion for
temperature or a designated use due to temperature should be listed. Listing is
appropriate because the applicable water quality standard is not met. Heat, the cause
of the impairment, is defined as a "pollutant" under section 502(6) of the Clean
Water Act and can be allocated. It is immaterial to the listing decision whether the
source of the temperature -related impairment is a thermal discharge or solar
radiation. Both are sources of heat, and the heat can be allocated through the TMDL
process.33
32 U.S. Envtl. Protection Agency, Decision Document for the Approval of the North Carolina Department of
Environmental Quality 2018 Section 303(d) List at 4 (May 22, 2019),
https://files nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2018/20190522-NC-208-303d-Approval-
Package.pdf.
33 U.S. Envtl. Protection Agency, National Clarifting Guidance for the 1998 State and Territory Section 303(d)
Listing Decisions at 5, https://www.epa.gov/sites/production/files/2015-10/documents/lisgid.pdf, Attach. 7.
9

Indeed, EPA recently prepared a TMDL to address exceedances of temperature water
quality standards promulgated to protect salmon and steelhead in the Pacific Northwest.34 That
analysis noted, as an example, that "temperature TMDLs typically identify loss of riparian shade
as a nonpoint source of heat."35
In short, to comply with the CWA, North Carolina may not 1) interpret its trout waters
temperature standard as only applicable to temperature increases caused by point source
discharges or 2) otherwise exclude effects from nonpoint source discharges when preparing
303(d) lists.
Third, DEQ's interpretation of the trout waters temperature standard as only relating to
temperature increases attributable to thermal point source discharges is inconsistent with how
DEQ and other state agencies apply the standard outside of the 303(d) context. For instance, the
North Carolina Forest Service has promulgated "performance standards for the protection of
water quality during silvicultural activities." 2 N.C. Admin. Code 60C.0101. One performance
measure requires "[s]hade ... [to] be retained to protect [perennial] streams from temperature
fluctuations that result in a violation of a water quality standard of the Environmental
Management Commission as contained in Rule 15A NCAC 2B . 0211." Id. 60C.0208 (emphasis
added).36 While the performance measure is not specific to trout waters, it shows that the North
Carolina Forest Service understands that nonpoint source pollution can cause a violation of
stream temperature water quality standards.
Elsewhere, DEQ itself has confirmed that the 20° C trout waters temperature standard is
an absolute prohibition regardless of whether a stream is heated by point or nonpoint source
discharges. With funding from EPA, DEQ completed a study in 2013 to assess risks to streams
from headwater impoundments.37 There, DEQ confirmed that trout waters "have a maximum
allowable [temperature] value of 20°C."38 The study ultimately found that "[d]esignated trout [
waters showed extremely high levels of exceedences [sic] of the 20°C maximum" with no
discussion of whether those exceedances were attributable to point or nonpoint source
discharges.39
Finally, and most significantly, DEQ has filed enforcement actions against private
landowners for causing exceedances of the trout waters temperature standard even when no
thermal point source discharges were involved. These enforcement actions thus relied on an
34 See U.S. Envtl. Protection Agency, Columbia and Lower Snake Rivers Temperature Total Maximum Daily Load
(Aug. 13, 2021), https://www.epa.gov/system/files/documents/2021-08/tmdl-columbia-snake-temperature-
08132021.pdf, Attach. 8.
35 Id. at 33 n.9 (emphasis added).
36 See also North Carolina Forestry Best Management Practices Manual to Protect Water Quality,
https://www.ncforestservice.gov/publications/BMP2021 /2021NCFSBMPManual.pdf.
37 See N.C. Dept' of Env't Qual, Assessing Impacts Due to Small Impoundments in North Carolina to Support 401
Certification Policies (Feb. 28, 2013), http://www.ncwetlands.org/wp-content/uploads/Impacts-Due-to-Small-
impoundments-2013-report.pdf, Attach. 9.
38 Id. at 23.
39 Id. at 41.
10

interpretation of the temperature standard DEQ has sought to disclaim in the 303(d) listing
context.
On June 30, 2021, DEQ issued a Notice of Violation to a landowner in Surry County,
North Carolina, for violations of water quality standards stemming from widespread clearing of
forested lands. DEQ did not allege that the clearing activities resulted in a point source discharge
but did state that:
Title 15A North Carolina Administrative Code 2B .0211 (18) requires
"Temperature: not to exceed 2.8 degrees C (5.04 degrees F) above the natural water
temperature, and in no case to exceed 29 degrees C (84.2 degrees F) for mountain
and upper piedmont waters ...; the temperature for trout waters shall not be
increased by more than 0.5 degrees C (0.9 degrees F) due to the discharge of heated
liquids, but in no case to exceed 20 degrees C (68 degrees F);" Forested buffers
adjacent to streams are important measures in regulating water temperature of
streams, particularly in shallow tributaries as exists on the subject Parcels. Clearing
of the vegetated buffers may results in increased temperatures of surface waters
draining to Ramey Creek and Big Pine Creek. Temperature field readings collected
by DWR staff on June 28, 2021 constitute violations of NC Water Quality
Standards.4o
The landowner failed to rectify the violations and on August 6, 2021, DEQ filed a
Verified Complaint and Motion for Preliminary Injunctive Relief in Surry County Superior
Court.41 The Complaint states:
Forest buffers adjacent to streams are important measures in regulating water
temperature of streams. Clearing of the vegetated buffers may result in increased
temperatures. In Trout Waters, the temperature is not to, in any case, "exceed 20
degrees C (68 degrees F)." 15A NCAC 2B .0211(18).42
The Verified Complaint continued by explaining that on "June 28, 2021, [DEQ] staff
conducted water quality sampling. [DEQ]'s water quality samples show several temperature
exceedances above the maximum allowable temperature of 20°C. 15A NCAC 2B .0211(18)."43
It explained that "clear -cutting trees near the border of streams removes shade and can cause
water temperature to exceed the regulatory limit for trout waters." Shade removal is not a point
source thermal discharge, though DEQ still recognized that it could contribute to violations of
the temperature standard for trout waters.44 The Verified Complaint concluded by alleging that
4o Attach. 10 (emphasis added). On October 5, 2021, DEQ issued a Notice of Continuing Violation related to
activities on the same parcels of land and stating more explicitly that "[t]emperature readings above 68 degrees...
[constitute] violations of NC Water Quality Standards." Attach. 11. Sixty-eight degrees is the maximum temperature
allowed in classified trout waters.
41 Attach. 12.
42 Id. at ¶ 15 (emphasis added).
43Id.at ¶43.
44 Id.
11

the landowner remained in violation of North Carolina's water quality laws, including the
temperature standard applicable to trout streams, and asking the court to order the landowner to
prepare a "Temperature Restoration Plan" to "restore streams to the proper temperature for
trout."45
We applaud DEQ for taking action to resolve the water quality violations in Surry
County. But the enforcement action removes any doubt that DEQ understands the trout waters
temperature standard to apply in situations where thermal point source discharges are not present
and to prohibit all exceedances of the 20°C temperature standard. DEQ cannot take the opposite
position now as it compiles its 2022 303(d) list. It must list streams as impaired where data
shows the streams exceeding the trout waters temperature standard consistent with DEQ's listing
methodology.
F. Point source dischargers are present on or upstream of several North Carolina trout
streams exceeding the trout waters temperature standard.
Based on this faulty application of the trout waters temperature standard when compiling
past 303(d) lists, DEQ has listed some trout streams as "Category 3a" in its 2022 Draft Integrated
Report.46 Category 3a is reserved for instances "where data are insufficient to determine if a
parameter is meeting or exceeding criteria."47 Presumably, these streams have been listed under
Category 3a because DEQ did not assess the presence of thermal point source dischargers when
compiling its 303(d) list and, because it interpreted the standard to only apply when a thermal
point source discharger was present, concluded it had insufficient data to know whether the
standard was exceeded. As explained above, this interpretation of North Carolina's temperature
standard for trout waters is inconsistent with the CWA and DEQ's application of the standard
outside of the 303(d) arena. But even under DEQ's incorrect interpretation of the standard, DEQ
should have listed more segments because point source dischargers are, in fact, present on or
upstream of multiple segments exceeding the trout waters temperature standard. The list
provided below is not comprehensive and was compiled using information available on DEQ's
"Online GIS Permits Map."48 It also does not encompass general NPDES permits.
Data relevant to the French Broad River (AU ID 10925) is collected at monitoring station
E0150000. That data shows a 25% exceedance rate of the trout waters temperature standard at
99% confidence leve1.49 NPDES Permit Nos. NC0000311,50 NC0021946,51 NC0024295,52
45 Id. at ¶¶ 52-56; Prayer for Relief ¶ 2.
46 See, e.g., 2022 Integrated Report, Little River (AU ID 538) (listed as Category 3a for trout waters temperature
standard).
47 N.C. Dep't of Envtl. Quality, 2020 Integrated Report Category Assignment Procedure at 5,
hftps://deq.nc.gov/media/17840/download.
48 See https://data-ncdenr.opendata.arcgis.com/apps/ncdenr::permits-map/explore
49 Supra note 24.
5o Attach. 13.
51 Attach. 14.
52 Attach. 15.
12

NC008622353 all appear to discharge into or upstream of this stream segment. None of these
permits impose limits, aside from monitoring requirements, related to temperature except Permit
No. NC0000311, which states that the "temperature of the effluent shall be such as not to cause
an increase in the temperature of the receiving stream of more than 0.5°C and in no case cause
the ambient water temperature to exceed 20°C."
Data relevant to the Horsepasture River (AU ID 10512) is collected at monitoring station
H6000000. That data shows a 20% exceedance rate of the trout waters temperature standard with
93% confidence.54 NPDES Permit Nos. NC005942155 and NC005943956 discharge into,
upstream, or into tributaries upstream of this stream segment. Neither of these permits imposes
limits related to temperature except for monitoring requirements.
There are two monitoring stations on the North Toe River (E7000000 and E8100000).
They both show greater than 10% exceedance of the trout waters temperature standard at greater
than 90% confidence leve1.57 Multiple hard rock mines discharge into the North Toe River.
These mines have some combination of general permits, NPDES stormwater permits, and
NPDES wastewater permits including but not limited to NPDES Permit Nos. 0000175, 0000361,
0084620, 58 0085839, 0000400, and 0000353.59 None of these wastewater permits appear to
impose any limitation related to temperature beyond monitoring. NPDES Permit No. 0021423
also discharges into the North Toe River and lacks requirements related to temperature beyond
monitoring.6°
The single monitoring station on the Valley River (F4000000) also documents 25%
exceedance of the trout waters temperature standard with 97% confidence.61 NPDES Permit No.
NC0020800 discharges into the Valley River and includes no limitation on temperature
discharges beyond monitoring.
In conclusion, DEQ has for too long ignored its obligation to include on its 303(d) list
stream segments that are exceeding the temperature standard applicable to trout waters. DEQ's
data shows this standard has been exceeded more than 10% of the time at greater than 90%
confidence level on multiple trout waters that DEQ has refused to list as impaired. These
exceedances may be attributable to a combination of point and nonpoint source discharges. DEQ
must list these streams as impaired on its 303(d) list as a first step towards addressing these
exceedances.
53 Attach. 16.
54 Supra note 24.
55 Attach. 17.
56 Attach. 18.
57 Supra note 24.
58 Attach. 19
59 Attach. 20.
60 Attach. 21.
61 Supra note 24.
13

III. DEQ must explain how it assesses compliance with narrative water quality
standards.
When preparing its 303(d) list, DEQ must list those waterbodies for which existing
requirements "are not stringent enough to implement any water quality standards applicable to
such waters" including water quality standards based on "narrative criteria."40 C.F.R. §
130.7(b). DEQ's draft 2022 303(d) list and listing methodology fail to disclose how narrative
criteria are considered in the 303(d) process. DEQ must correct this oversight.
Of particular importance, North Carolina's toxic substances standard requires that "the
concentration of toxic substances, either alone or in combination with other wastes, in surface
waters shall not render waters injurious to aquatic life or wildlife, recreational activities, public
health, or impair the waters for any designated uses." 15A N.C. Admin. Code 2B.0208(a).
Compliance with this standard is critical especially for emerging contaminants, such as per- and
polyfluoroalkyl substances ("PFAS"), for which DEQ has yet to promulgate a numeric water
quality standard. EPA recently recognized PFAS as "an urgent public health and environmental
issue facing communities across the United States."62 And DEQ has recognized that PFAS "meet
the definition of `toxic substance' under North Carolina law.63 DEQ must disclose how it is
applying its narrative toxic substances water quality standards to ensure that waterbodies
contaminated by PFAS (and other emerging contaminants that lack numeric water quality
criteria) are properly listed on the state's 303(d) list.
IV. DEQ's delisting methodology remains statistically unsound.
For several years, multiple groups have pointed out flaws in DEQ's delisting
methodology. Those concerns remain, and we incorporate previous comments by reference
here.64
Briefly, North Carolina's methodology for delisting waters that are impaired for non-
toxic pollutants is flawed because it fails to reverse the null hypothesis used for listing decisions.
Stated differently, while it is appropriate to complete statistical analysis assuming stream
segments are not impaired when evaluating whether a segment should be listed, that assumption
must be reversed when evaluating whether a segment should be delisted because already listed
segments must be presumed impaired until proven otherwise. Instead, DEQ applies the same
method for both listing and delisting—whether waterbodies exceed criteria more than 10% of the
time with more than 90% confidence —and attempts to cure the imbalance in statistical
confidence by adding a second step to its delisting decisions. But this second step fails to cure
62 EPA, PFA Strategic Roadmap: EPA's Commitments to Action 2021-2024, at 1, available at
https://www. epa. gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf.
63 Amended Complaint, N.C. Dept. of Environmental Quality v. Chemours, 17 CVS 580, 32 (N.C. Super. 2018),
Attach. 22 (stating that "the process wastewater from [Chemours'] Fluoromonomers/Nafion® Membrane
Manufacturing Area contains and has contained substances or combinations of substances which meet the definition
of `toxic substance' set forth in 15A N.C.A.C. 2B .0202," referring to GenX and other PFAS).
64 See Letter from Spencer Scheidt, SELC, to Andy Painter, DEQ at 1-9 (Apr. 2, 2021), Attach. 23.
14

the fundamental flaw with the analysis —failure to reverse the null hypothesis —and allows DEQ
to remove impaired waterbodies from the list with less statistical confidence than required to list
them in the first place.
At the second step, DEQ allows previously listed waters with an exceedance rate greater
than 10% with but less than 90% statistical confidence to be delisted "if there are less than 2
excursions of the criterion in newer data that have not been previously assessed." 65 For those
previously listed waters with less than a 10% exceedance rate, waters are delisted "if there is
greater than 40% statistical confidence that there is less than a 10% exceedance of the criterion
or if there are less than 3 excursions of the criterion in newer data that have not been previously
assessed."66 On their own, these exceedance limits are arbitrary and fail to account for sample
size. They also fail to bring the delisting methodology to the 90% confidence level required for
sound statistical analysis.67
This has real consequences. The Cane River is an important trout stream and is also home
to the endangered Appalachian elktoe mussel, both of which are threatened by turbidity and
sediment deposition. In 2018, the Cane River was listed as impaired for turbidity. For the 2020
303(d) listing cycle, DEQ assessed data from forty-nine sampling events, eight of which
demonstrated violations of the turbidity standard. 68 Applying DEQ's listing methodology this
translates to a 16.3% exceedance level with 88.8% confidence, just shy of the required 90%. Had
DEQ appropriately reversed the null hypothesis, these same numbers would translate to a
delisting decision confidence level of 5.2%.69 Yet because the Cane River had a greater than
10% exceedance rate with just under 90% confidence, DEQ moved to step two of its delisting
methodology to consider whether "there are less than 2 excursions of the criterion in newer data
that have not been previously assessed." Of the sixteen newer samples related to the 2020 303(d)
list, only one demonstrated an exceedance of the turbidity standard, leading DEQ to delist the
Cane River to Category 3a (insufficient data). Notably, DEQ would have needed to show one
exceedance out of at least thirty-eight samples to reach a 90% confidence level for its delisting
decision based on this "newer" data only.
This 303(d)-listing cycle, the "newer data" under DEQ's methodology shows the Cane
River was sampled eleven times and two of those samples exceeded the water quality standard
for turbidity —an exceedance rate of 18%.70 Thus the Cane River continues to exceed water
65 N.C. Dep't of Envtl. Quality, 2022 303(d) Listing and Delisting Methodology at 4 (May 13, 2021),
https://deq.nc.gov/media/19374/download.
66 Id.
67 Any "statistical conclusion that has a confidence level of less than 90% is considered not acceptable by most
statistics practitioners." Pi-Erh Lin, Duane Meeter, & Xu-Feng Nui, A Nonparametric Procedure for Listing and
Delisting Impaired Waters Based on Criterion Exceedances at 7 (2000),
https://www.waterboards.ca.gov/water issues/programs/tmdl/records/state board/2003/ refl913.pdf.
68 See N.C. Dep't of Envtl. Quality, Div. of Water Res., BasinSummAMSCoalit1418and1718 [hereinafter "2020
Data"], https://files nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2020/2020_DATA.zip.
69 The delisting "level of confidence" was calculated using the Excel BINOM.DIST function: 1-
[BINOM.DIST(#exceedances, #samples, 10% exceedance rate, TRUE)].
70 Supra note 24.
15

quality standards more than 10% of the time, but DEQ proposes to keep it listed under Category
3a based on its faulty delisting methodology. Had DEQ used a statistically sound delisting
approach, the Cane River would never have been removed from the impaired list in the first
instance and the reasons for its turbidity impairment should have been assessed and mitigated
through preparation of a TMDL. Instead, it continues to routinely exceed water quality standards
but remains indefinitely listed in Category 3a to the detriment of species like Appalachian elktoe
that require cool, clean water to survive.
DEQ also relies on the 10% exceedance rate to assess impairment for toxic pollutants. As
EPA has explained, this approach is inappropriate for toxics.71 Nevertheless, DEQ has never
"provided a scientifically defensible rationale to support [its] Listing Methodology for toxics."72
DEQ has failed to do so again as part of its draft 2022 303(d) list. During each of the past four
303(d) cycles EPA has rejected DWR's toxics findings and independently reviewed North
Carolina's water quality data to determine whether all waterbody impairments were identified —
it will be required to do so again in 2022.
V. DEQ must collect data at times and locations that reveal the full extent of
pollution.
Finally, we reiterate and incorporate the concerns raised by several groups in comments
on the 2020 303(d) list related to deficiencies in DEQ's monitoring network and sampling
approach.73 Specifically, an ambient monitoring program that samples at arbitrary intervals and
allows sampling to be delayed for "bad weather" with no limitation is likely to underreport
exceedances for pollutants like turbidity. DEQ's ambient monitoring locations also appear to
avoid some of the most problematic areas, resulting in underreporting pollution and unjustified
delistings. We are mindful of limitations in agency resources and competing agency priorities,
but we encourage DEQ to work to develop a more representative monitoring network.
VI. Conclusion
We appreciate the opportunity to submit comments on North Carolina's draft 2022
303(d) list. We request a meeting with DEQ to discuss the trout waters temperature standard. In
particular, we would like to better understand DEQ's position regarding application of the
standard and discuss ways to mitigate rising temperatures in trout streams.
71 U.S. Envtl. Protection Agency, Decision Document for the Partial Approval of the North Carolina Department of
Environment Quality 2016 Section 303(d) List at 12 (Dec. 8, 2016),
https://files nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2016/NC2016_303dDecisionPackage20161208
%20%28003%29.pdf.
72 Id. at 22.
73 See supra note 64 at 15-17.
16

Sincerely,
Patrick Hunter
Managing Attorney
[e-mail]
Susannah Knox
Senior Attorney
[e-mail]
cc via email only:
Lauren Petter, EPA Region 4, [e-mail]